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Is It Rape? It Depends on Who Is Asking

PARIS — Is it rape when you have sex with someone who didn’t tell you it was O.K., but told you it was O.K. earlier that night?

The allegations of sexual assault by two Swedish women against Julian Assange, the founder of the anti-secrecy group WikiLeaks, have raised a series of questions, some silly (Is a broken condom a criminal offense?), some preposterous (Were the two women on the C.I.A. payroll?), but at least one worth mulling: What, today, constitutes sexual violence?

According to a leaked police report, Swedish prosecutors want to question Mr. Assange on allegations of rape in only one of the two cases: The woman in question, a WikiLeaks groupie, let him spend the night at her apartment and had consensual sex with him at least once (reportedly with a condom). She then testified to falling asleep and being woken later by him penetrating her (without a condom).

She only went to the police days afterward, when she discovered by talking to another woman with whom Mr. Assange had stayed that the second woman, too, felt violated after he was reluctant to use a condom and then allegedly “did something” to make it break. (The allegation here is sexual molestation.)

“Why get the police into the bedroom over something like this? Grow up,” said another.

“He sounds really sleazy,” said a third, “but not exactly like a rapist.”

When we think about rape, many of us still imagine a stranger jumping out from hiding and violating a woman with a severe degree of force.

Yet in most rape cases, the perpetrator is someone the victim knew, victim surveys in several countries indicate. A husband, an acquaintance, perhaps a guy the victim met in a bar or a club. (And yes, sometimes the victim is a man, but that is a whole other issue.)

“Rape happens in the messiness of everyday life, not in some other reality,” said Liz Kelly, director of the Child and Woman Abuse Studies Unit at London Metropolitan University. “Rape is messy. It’s rarely straightforward.”

In Europe, most rape legislation still involves force as a defining element. But in 2003, the European Court of Human Rights set an important precedent for defining rape on the basis of nonconsent: The court found against the Bulgarian authorities who had dropped a rape case involving a young woman and two perpetrators because there was insufficient proof of physical force.

A few countries, like Britain, have already explicitly made nonconsent the basis of the law. Some, like Sweden, are somewhere in between, with force definitions that include situations in which the victim is unable to consent — say, because they are sleeping or intoxicated.

The Swedish law calls this “sexual exploitation,” the third and least severe category of rape, which carries a maximum prison sentence of four years. It is in connection with this possible charge that the Swedish police wish to question Mr. Assange.

So: Is it rape when you have sex with someone who didn’t tell you it was O.K., but told you it was O.K. earlier that night? Can you ever presume consent — just because you had sex with someone before, are married to someone, or even paid for sex?

In the view of Monica Burman, a Swedish rape expert at Umea University, “there is a sense of entitlement in certain contexts.”

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“But there can be no mutuality,” she said, “about any form of sex if both parties do not consent.”

One reason this issue is so tricky is that it goes to the heart of how we define heterosexuality.

“There are still legacies of this idea that the male is the active pursuer and the female is the one who sets the limits,” said Ms. Kelly of London Metropolitan University.

In this world, as long as the woman is passive, she is consenting.

Ms. Kelly was asked by the European Commission to look at rape legislation across the European Union and suggest how law might be standardized. Her recommendation is to introduce nonconsent as the definition underpinning rape across the bloc.

“So in future we need a written contract every time before we close our bedroom doors?” an exasperated male journalist colleague of mine asked.

Not exactly. A Canadian researcher, Lois Pineau, talks about communicative sexuality. As Ms. Kelly said: “We need to learn how to talk about sex and, yes, during sex. Consent needs to be explicit.”

It would be tricky to standardize legislation, even across Europe. Some European countries, like Ireland and Portugal, still differentiate procedurally between rape within and outside of marriage. And altering rape legislation is no guarantee that prosecution rates will increase. A study in 11 European nations, overseen by Ms. Kelly’s unit, showed that while reporting rates increased in countries with stricter definitions, the difficulties prosecutors had were often identical.

“Prosecutors often have difficulties proving nonconsent if there isn’t evidence of some form of violence,” said Ms. Burman, the Swedish rape expert.

Take Britain, where the 2003 Sexual Offenses Act reclassified rape as the penetration of a person’s vagina, anus or mouth without consent, and defined consent in terms of that person’s freedom and capacity to consent.

After the law changed, reporting rates continued their steady climb of the past two decades, but conviction rates barely budged. According to Ms. Kelly, overhauling the definition of rape is only the first step; the next is to completely rethink how to build a rape case and how to collect evidence.

Because it has become inextricably linked to the controversy surrounding WikiLeaks, the Assange case offers few pointers for an honest debate about rape and how to prosecute it.

Taking a position on one issue is mostly presumed to be taking one on the other. In this sense there are parallels to Bill Clinton, Monica Lewinsky and the infamous stained dress, a case that involved complicated ethical questions and was heavily used for political ends.

But the Assange case is a reminder that rape cases may not conform to old stereotypes.

“Sexual violence remains a taboo. It is disturbing to people,” Ms. Kelly said. “It’s a kind of fault line in issues of gender equality.”